Affirmative Action
9:06 am
Wed November 13, 2013

So What Exactly Happened with Fisher v. University of Texas? (Update)

Update (July 15, 2014): The Fifth Circuit has ruled that UT's affirmative action policies can continue.

Read more here: ​UT Affirmative Action Policies Stand in Fisher Ruling

Update: The Fifth Circuit Court of Appeals is hearing arguments today in Fisher v. University of Texas at Austin, the case that questions UT's use of race in its admissions process.

In June, the U.S. Supreme Court punted the case back to the Fifth Circuit Court of Appeals after deciding the Fifth Circuit didn't apply the strictest scrutiny to UT's admissions policies.

While most UT  students are admitted based on whether they’re in the top seven percent of their graduating class, some are admitted based on what the university calls a “holistic review.” An applicant’s race is one element of that review.

Back in 2008, a white student named Abigail Fisher was denied admission to UT under the holistic review. She sued saying she was a victim of reverse discrimination. Lower courts upheld UT’s affirmative action policy.

But in a 7-1 decision this summer, the U.S. Supreme Court said the Fifth Circuit should have used a stricter standard to determine whether UT needs to consider race and ethnicity to achieve diversity – or whether there are other ways to do that.

UT argues the lawsuit is moot since Fisher graduated from Louisiana State University in 2012 and that Fisher would have been denied admission regardless of her race. Arguments begin this at 3:15 this afternoon. 

Below, read KUT's explainer on the Supreme Court's decision this summer.

Original Story (June 26, 2013): It's been a few days and a lot has happened since the U.S. Supreme Court remanded the Fisher v. UT at Austin case back to the Fifth Circuit Court of Appeals. But it was a greatly-anticipated ruling that basically ended with a whimper – creating a lot of confusion. And the case still isn't over.

What did the Supreme Court rule?

The Supreme Court ruled the Fifth Circuit Court of Appeals has to reconsider the case – essentially punting the case to the lower court. When the Fifth Circuit Court of Appeals heard the case previously, it upheld the University of Texas at Austin's race based admissions policies.

How did the justices rule?

The court ruled 7-1, with Justice Ruth Bader Ginsberg dissenting. Justice Elena Kagen recused herself from the case. Some law experts see the decision as a compromise. UT Law Professor Scott Powe says the court punted because it was split 4-4, with Justice Anthony Kennedy as the swing vote. Powe says Kennedy probably didn't want to be the swing vote in this case.

Why send it back to the Fifth Circuit?

The Supreme Court says when the Fifth Circuit Court of Appeals heard the case it didn't apply proper scrutiny to UT's affirmative action policy, as it was supposed to under a 2003 affirmative action case, Grutter v Bollinger. Because the court didn't use "strict scrutiny," the Supreme Court sent it back to the Fifth Circuit to properly consider the case.

What is Grutter v. Bollinger?

Grutter v. Bollinger is a 2003 decision in which the Supreme Court upheld affirmative action at the University of Michigan Law School. The Grutter case says the court must apply “strict scrutiny” to a university’s admissions program, to ensure diversity is not defined as “mere racial balancing," but has a compelling state interest to achieve diversity. In 2003, the court ruled affirmative action is a compelling state interest – something Supreme Court experts say is very rare for the court to declare.

What does this mean for UT?

Right now, UT says it will not change its admissions policies. UT will continue to accept up to 75 percent of its students who graduate in the top ten percent of their class under the statewide Top Ten Percent rule. The other 25 percent will be chosen based on a variety of factors, including GPA and SAT scores, extra curricular activities, and special circumstances, which includes racial and ethnical minorities. 

So what exactly is the Top Ten Percent rule? 

The Top Ten Percent rule is a provision that originally allowed all Texas students who graduate in the top ten percent of their graduating class to be guaranteed admission to any public university in Texas. It was implemented in 1997 in response to Hopwood v. Texas, which ended affirmative action at Texas universities (until 2003, when the Supreme Court upheld it in Grutter v. Bollinger). In light of that decision, the Top Ten Percent rule aimed to create diversity at state universities.

The provision was amended in 2009 at UT to accept the top eight percent of high school seniors. That's because the university was overwhelmed with top ten percent applicants. At one point, 81 percent of UT's freshman class was accepted under that rule. 

Will this change affirmative action policies across the country?

No, the court did not rule on affirmative action and, in essence, upheld the 2003 case, Grutter v. Bollinger, and other affirmative action cases in the past. But next term, the Supreme Court is expected to hear another case in Michigan concerning affirmative action. 

Who is Abigail Fisher, and why did she file a lawsuit against UT?

Abigail Fisher graduated from Austin High School in 2008 and was rejected from UT. She filed a lawsuit against UT with the help of Edward Blum, who directs the Project on Fair Representation. It's a nonprofit that was searching for a plaintiff to bring a case that would overturn affirmative action at public universities. Fisher is white, and says she was rejected from UT because of her race. She did not graduate in the top 10 percent of her class, but her father and sister went to UT. She played the cello, among other activities. She attended Louisiana State University and now works in finance in Austin. 

UT contends Fisher wouldn't have been admitted even if race wasn't a factor in the admissions process. 

So … what's next?

The future lies in the hands in the Fifth Circuit Court of Appeals. Law experts say it could take a year before anything is decided. UT has to prove to the Fifth Circuit that it needs an affirmative action policy beyond the Top Ten Percent Rule. UT President Bill Powers contends the university has done that already. Fisher's lawyer, Edward Blum, says the 7-1 decision by the Supreme Court shows the court thinks UT Austin needs to reconsider its policies regarding race based admissions.